C A L I F O R N I A
M E M O R A N D U M
DATE:
March 19, 2024
TO:
Mayor and City Council Members
FROM:
John I. Kennedy, City Attorney
Chadrick Smalley, Community Development Director
SUBJECT:
Study Session: Tobacco Retailer License Requirements
RECOMMENDATION
This item offers the City Council the opportunity to discuss and provide direction to staff on options for tobacco retailer license requirements.
BACKGROUND
At the October 17, 2023 City Council meeting, Mayor Bauters requested and received majority support for a future study session to consider enacting tobacco retailer license requirements and amending the City’s smoking pollution control ordinance to repeal the private smokers’ lounge exception.
DISCUSSION
The City Attorney’s Office has worked with staff from the Alameda County Public Health Department’s Tobacco Control Program, the Public Health Law Center, the American Cancer Society, and the American Heart Association, as well as city staff, to draft a proposed ordinance that would require a tobacco retailer license to sell Tobacco Products in Emeryville.
The attached ordinance would:
require a Tobacco Retailer license for any person to sell, offer for sale, or offer to exchange, for any form of consideration, tobacco, Tobacco Products or Tobacco Paraphernalia; require that a Tobacco Retailer operate at a fixed location; require an application for a nontransferable license from each person with an ownership or managerial interest in a tobacco retail business; limit eligibility for a Tobacco Retailer license;
impose additional requirements and prohibitions on the sale of Tobacco Products including prohibiting the sale of Flavored Tobacco Products and Electronic Smoking Devices; provide an appeal process for the denial or suspension of a Tobacco Retailer license and penalties if a Tobacco Retailer license is suspended or revoked; and provide for enforcement and penalties for violation of applicable requirements.
In addition to the items above, there are two areas where staff requests direction from the City Council. The first is whether the City Council wants to define a “substantial change to a business operation” to include the transfer of an existing location to a new Proprietor. If so, existing Tobacco Retailers located in areas of the City where Tobacco Retailer Licenses cannot be issued (i.e. locations within 1,000 feet of a “Youth Oriented Facility” which, as defined by the draft ordinance, includes parks, schools, libraries, playgrounds, youth centers and recreation facilities) would be prohibited from receiving or renewing a license if the business is transferred to a new Proprietor (defined as a person with an ownership or managerial interest in the business). As of February 29, 2024, there are 14 businesses with State Tobacco Retail Licenses (see Attachment B for a list of businesses); all of them appear to be located within 1,000 feet of a Youth Oriented Facility. In sum, if any of these businesses transferred ownership, they could not receive a new Tobacco Retailer License and could no longer sell Tobacco Products. Again, staff is seeking Council direction on this issue and the proposed definition of “substantial change in business operation” does not include a change in Proprietor.
The second staff request for direction involves compliance monitoring. Staff would like to know whether the City Council wants to include mandatory compliance monitoring by the Emeryville Police Department given the cost and staffing resources involved. Such a requirement would include at least one compliance check of licensed Tobacco Retailer establishments every 12-months involving persons between the ages of 18 and 20 entering the licensed premises and attempting to purchase Tobacco Products as well as verifying that a Tobacco Retailer is in compliance with all other licensing requirements. Staff estimates the annual cost to the City for such compliance checks would be significant. Although these costs could be recouped as part of the fee charged for issuing or renewing a Tobacco Retailer license, Police Department staff time and resources would need to be devoted to developing a program and conducting compliance checks which would be diverted from other tasks.
A draft of proposed amendments to the Smoking Pollution Control ordinance is provided to the Council as well for consideration relative to this study session. The amended ordinance revises certain definitions related to tobacco products and smoking devices that are referenced in the Tobacco Retailer License ordinance and repeals the private smokers’ lounge exception. After the Council provides further direction, staff will schedule both ordinances for first reading for the Council to consider adoption.
FISCAL IMPACT
The establishment of a Tobacco Retailer License process is expected to require staff time to conduct initial educational outreach, prepare application and license forms, determine the license fee amount and amend the Master Fee Schedule to include the license fee. The costs of ongoing administration of the program would be covered by the license fee, however, the staff time required to administer the program represents an opportunity cost in the form of staff time spent on other activities.
Additionally, the potential inclusion of mandatory compliance monitoring by the Emeryville Police Department as part of this licensing program would increase the staff resources required for implementation.
STAFF COMMUNICATION WITH THE PUBLIC
Staff informed existing tobacco retailers of this study session where staff had contact information. If the City Council decides to adopt a licensing requirement applicable to Tobacco Retailers, staff requests that the operative date be at least 90 days after enactment of any ordinance to provide educational outreach to the affected businesses regarding the new licensing requirements.
CONFLICT OF INTEREST
No conflict of interest has been identified.
CONCLUSION
Staff requests the City Council discuss and provide direction regarding the Tobacco Retailer license requirements.
PREPARED BY: John I. Kennedy, City Attorney
APPROVED AND FORWARDED TO THE
CITY COUNCIL OF THE CITY OF EMERYVILLE:
Paul Buddenhagen, City Manager
ATTACHMENTS
Attachment A – Draft Ordinances
Attachment B – List of Existing State-Licensed Tobacco Retailers Study Session: Tobacco Retailer License Requirements City Council Meeting | March 19, 2024Page 2 of 3Study Session: Tobacco Retailer License Requirements City Council Meeting | March 19, 2024Page 2 of 3 Study Session: Tobacco Retailer License Requirements City Council Meeting | March 19, 2024
Study Session: Tobacco Retailer License Requirements City Council Meeting | March 19, 2024